Federal Judge foresees potential constitutional conflict in Arizona ‘secret ballot’ amendment but says it depends on how amendment is applied

A U.S. District Court judge has found that an Arizona state constitutional amendment addressing how employees choose a union may be preempted by the National Labor Relations Act, but it will depend on how the amendment is applied.
Judge Frederick J. Martone on Sept. 5 granted the state’s motion to dismiss the case but left the door open for future action. “It is possible that state litigation invoking (the amendment) may impermissibly clash with the NLRB’s jurisdiction to resolve disputes over employee recognition, conduct secret ballot elections, and address unfair labor practices,” he wrote. But because the amendment has not yet been applied, Judge Martone wrote, he could not assume that it would conflict with the NLRA.
The court’s decision made clear that federal labor law provides for two ways for employees to choose a union: “A bargaining representative may be voluntarily recognized by an employer if there is convincing evidence of majority support. Alternatively, the NLRB may certify a union as the bargaining representative after it conducts a secret ballot election.”
In January 2011, the NLRB advised Arizona and three other states that recently-adopted “secret-ballot amendments” conflicted with longstanding federal labor law by restricting the methods by which employees can choose a union. When no agreement could be reached, the agency filed suit to have the Arizona amendment declared unconstitutional. The state later represented to the court that there was no preemption because the state’s “guarantee” of a secret ballot election would only apply if and when the voluntary recognition option is not selected.
“Our objective from the beginning was to ensure that employees protected by our law continue to have the same options for choosing representation that they have always had,” said NLRB Chairman Mark Gaston Pearce. “Although we continue to believe that a preemption finding should have been made, we are very pleased that the court recognized that these choices are guaranteed to employees by federal law and cannot be taken away by the states.”